Part 3 Sentencing procedures generally
21 General power to reduce penalties
(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.(2) If by any provision of an Act or statutory rule an offender is made liable to imprisonment for a specified term, a court may nevertheless impose a sentence of imprisonment for a lesser term.(3) If by any provision of an Act or statutory rule an offender is made liable to a fine of a specified amount, a court may nevertheless impose a fine of a lesser amount.(4) The power conferred on a court by this section is not limited by any other provision of this Part.(5) This section does not limit any discretion that the court has, apart from this section, in relation to the imposition of penalties.
21A Aggravating, mitigating and other factors in sentencing
(1) General
In determining the appropriate sentence for an offence, the court is to take into account the following matters:(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,(c) any other objective or subjective factor that affects the relative seriousness of the offence.The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work,(b) the offence involved the actual or threatened use of violence,(c) the offence involved the actual or threatened use of a weapon,(ca) the offence involved the actual or threatened use of explosives or a chemical or biological agent,(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),(e) the offence was committed in company,(ea) the offence was committed in the presence of a child under 18 years of age,(eb) the offence was committed in the home of the victim or any other person,(f) the offence involved gratuitous cruelty,(g) the injury, emotional harm, loss or damage caused by the offence was substantial,(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),(i) the offence was committed without regard for public safety,(ia) the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),(ib) the offence involved a grave risk of death to another person or persons,(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,(k) the offender abused a position of trust or authority in relation to the victim,(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),(m) the offence involved multiple victims or a series of criminal acts,(n) the offence was part of a planned or organised criminal activity,(o) the offence was committed for financial gain,(p) without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender’s vehicle.The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,(b) the offence was not part of a planned or organised criminal activity,(c) the offender was provoked by the victim,(d) the offender was acting under duress,(e) the offender does not have any record (or any significant record) of previous convictions,(f) the offender was a person of good character,(g) the offender is unlikely to re-offend,(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,(i) the remorse shown by the offender for the offence, but only if:(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,(k) a plea of guilty by the offender (as provided by section 22),(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),(m) assistance by the offender to law enforcement authorities (as provided by section 23).(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.(5A) Special rules for child sexual offences
In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.(5B) Subsection (5A) has effect despite any Act or rule of law to the contrary.(5C) For the purpose of subsection (2) (p), an offence under section 13 (2), 15 (4), 18B (2), 18D (2), 22 (2), 24D (1) or 29 (2) of the Road Transport (Safety and Traffic Management) Act 1999 is taken to have been committed while a child under 16 years of age was a passenger in the offender’s vehicle if the offence was part of a series of events that involved the driving of the vehicle while the child was a passenger in the vehicle.(6) In this section:child sexual offence means:
(a) an offence against section 61I, 61J, 61JA, 61K, 61M, 61N, 61O or 66F of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or(b) an offence against section 66A, 66B, 66C, 66D, 66EA, 66EB, 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900, or(c) an offence against section 80D or 80E of the Crimes Act 1900 where the person against whom the offence was committed was then under the age of 16 years, or(d) an offence against section 91J, 91K or 91L of the Crimes Act 1900 where the person who was being observed or filmed as referred to in those sections was then under the age of 16 years, or(e) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in any of the above paragraphs.prescribed traffic offence means an offence under any of the following provisions:
(a) sections 9, 11B (1) and (3), 12 (1), 13 (2), 15 (4), 18B (2), 18D (2), 22 (2), 24D (1) and 29 (2) of the Road Transport (Safety and Traffic Management) Act 1999,(b) sections 51B (1) and 52A (1) (a) and (3) (a) of the Crimes Act 1900,(c) section 52A (2) and (4) of the Crimes Act 1900 in the circumstances of aggravation referred to in section 52A (7) (a), (c) or (d) of that Act.serious personal violence offence means a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) that is punishable by imprisonment for life or for a term of 5 years or more.
22 Guilty plea to be taken into account
(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:(a) the fact that the offender has pleaded guilty, and(b) when the offender pleaded guilty or indicated an intention to plead guilty, and(c) the circumstances in which the offender indicated an intention to plead guilty,and may accordingly impose a lesser penalty than it would otherwise have imposed.(1A) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.
22A Power to reduce penalties for facilitating the administration of justice
(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).(2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
23 Power to reduce penalties for assistance provided to law enforcement authorities
(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:(a) (Repealed)(b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,(d) the nature and extent of the offender’s assistance or promised assistance,(e) the timeliness of the assistance or undertaking to assist,(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,(j) (Repealed)(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and(b) state the penalty that it would otherwise have imposed, and(c) where the lesser penalty is being imposed for both reasons—state the amount by which the penalty has been reduced for each reason.(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.
24 Court to take other matters into account
In sentencing an offender, the court must take into account:(a) any time for which the offender has been held in custody in relation to the offence, and(b) in the case of an offender who is being sentenced as a result of failing to comply with the offender’s obligations under a community service order, good behaviour bond or intervention program order:(i) the fact that the person has been the subject of such an order or bond, and(ii) anything done by the offender in compliance with the offender’s obligations under the order or bond, and(c) in the case of an offender who is being sentenced as a result of deciding not to participate in, or to continue to participate in, an intervention program or intervention plan under an intervention program order or good behaviour bond, anything done by the offender in compliance with the offender’s obligations under the intervention program order or good behaviour bond, and(d) in the case of an offender who is being sentenced following an order under section 11 (1) (b2):(i) anything done by the offender in compliance with the offender’s obligations under the order, and(ii) any recommendations arising out of the offender’s participation in the intervention program or intervention plan.
24A Mandatory requirements for supervision and other prohibitions to be disregarded in sentencing
(1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the fact that the offender:(a) has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence, or(b) has or may become the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004, or(c) as a consequence of being convicted of the offence, is prohibited under the Commission for Children and Young People Act 1998 from applying for or attempting to obtain child-related employment or from undertaking or remaining in child-related employment, or(d) has or may become the subject of an order under the Crimes (High Risk Offenders) Act 2006 (whether as a high risk sex offender or as a high risk violent offender).(2) This section has effect despite any Act or rule of law to the contrary.
24B Confiscation of assets and forfeiture of proceeds of crime to be disregarded in sentencing
(1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the consequences for the offender of any order of a court imposed because of the offence under confiscation or forfeiture legislation.(2) In this section:confiscation or forfeiture legislation means the following:
(a) the Confiscation of Proceeds of Crime Act 1989,(b) the Criminal Assets Recovery Act 1990,(c) the Proceeds of Crime Act 2002 of the Commonwealth,(d) any other law prescribed by the regulations for the purposes of this definition.
25 Local Court not to impose certain penalties if offender is absent
(1) The Local Court must not make any of the following orders with respect to an absent offender:(a) an order imposing a sentence of imprisonment,(b) an intensive correction order,(c) a home detention order,(d) a community service order,(e) an order that provides for the offender to enter into a good behaviour bond,(f) a non-association order or place restriction order,(g) an intervention program order.(2) At any time after it finds an absent offender guilty of an offence or convicts an absent offender for an offence, the Local Court:(a) may issue a warrant for the offender’s arrest, or(b) may authorise an authorised officer to issue a warrant for the offender’s arrest,for the purpose of having the offender brought before the Local Court for conviction and sentencing, or for sentencing, as the case requires.(3) This section does not limit the power that any court other than the Local Court may have, apart from this section, to deal with an offender whom it has found guilty or convicted in his or her absence.(4) In this section:absent offender means an offender who is being dealt with in his or her absence.
Division 2 Victim impact statements
In this Division:family victim, in relation to an offence as a direct result of which a primary victim has died, means a person who was, at the time the offence was committed, a member of the primary victim’s immediate family, and includes such a person whether or not the person has suffered personal harm as a result of the offence.
member of the primary victim’s immediate family means:
(a) the victim’s spouse, or(b) the victim’s de facto partner, or(b1) a person to whom the victim is engaged to be married, or(c) a parent, grandparent, guardian or step-parent of the victim, or(d) a child, grandchild or step-child of the victim or some other child for whom the victim is the guardian, or(e) a brother, sister, half-brother, half-sister, step-brother or step-sister of the victim.Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987.personal harm means actual physical bodily harm or psychological or psychiatric harm.
prescribed sexual offence has the same meaning as it has in the Criminal Procedure Act 1986.
primary victim, in relation to an offence, means:
(a) a person against whom the offence was committed, or(b) a person who was a witness to the act of actual or threatened violence, the sexual offence, the death or the infliction of the physical bodily harm concerned,being a person who has suffered personal harm as a direct result of the offence.victim means a primary victim or a family victim.
victim impact statement means a statement containing particulars of:
(a) in the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence, or(b) in the case of a family victim, the impact of the primary victim’s death on the members of the primary victim’s immediate family.
(1) This Division applies only in relation to an offence that is being dealt with by the Supreme Court, the Industrial Relations Commission, the District Court or the Local Court, and only as provided by this section.(2) In relation to an offence that is being dealt with by the Supreme Court or the District Court, this Division applies only if the offence is being dealt with on indictment in the Supreme Court or on indictment or summarily in the District Court and is:(a) an offence that results in the death of, or actual physical bodily harm to, any person, or(b) an offence that involves an act of actual or threatened violence, or(c) an offence for which a higher maximum penalty may be imposed if the offence results in the death of, or actual physical bodily harm to, any person than may be imposed if the offence does not have that result, or(d) a prescribed sexual offence.(2A) In relation to an offence being dealt with by the Industrial Relations Commission, this Division applies only if:(a) the offence is an offence against Division 5 of Part 2 of the Work Health and Safety Act 2011 or Subdivision 3 of Division 3 of Part 3 of the Rail Safety National Law (NSW), and(b) the offence results in the death of, or actual physical bodily harm to, any person.(3) In relation to an offence that is being dealt with by the Local Court, this Division applies only if the offence is:(a) an offence that results in the death of any person, or(b) an offence for which a higher maximum penalty may be imposed if the offence results in the death of any person than may be imposed if the offence does not have that result, or(c) an offence that is referred to in Table 1 of Schedule 1 to the Criminal Procedure Act 1986 and that:(i) results in actual physical bodily harm to any person, or(ii) involves an act of actual or threatened violence, or(d) a prescribed sexual offence that is referred to in Table 1 of Schedule 1 to the Criminal Procedure Act 1986.(4) Nothing in this Division limits any other law by or under which a court may receive and consider a victim impact statement in relation to any offence to which this Division does not apply.
28 When victim impact statements may be received and considered
(1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender.(2) A victim impact statement may also be received and considered by the Supreme Court when it determines an application under Schedule 1 for the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule.(3) If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate.(4) Despite subsections (1), (2) and (3), a court:(a) must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and(b) must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so.(5) A court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate.(6) (Repealed)
29 Victim impact statements discretionary
(1) The giving of a victim impact statement is not mandatory.(2) A victim impact statement may not be received or considered by a court if the victim or any of the victims to whom the statement relates objects to the statement being given to the court.(3) The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim.
30 Formal requirements for victim impact statements
(1) A victim impact statement must be in writing and must comply with such other requirements as are prescribed by the regulations.(1A) Photographs, drawings or other images may be included in the victim impact statement, subject to compliance with any requirements relating to the inclusion of such matters that are prescribed by the regulations.(2) If a primary victim is incapable of providing information for or objecting to a victim impact statement about the personal harm suffered by the victim (by reason of age, impairment or otherwise), a person having parental responsibility for the victim, a member of the primary victim’s immediate family or any other representative of the victim may, subject to the regulations, act on behalf of the victim for that purpose.(3) A court may receive and consider a victim impact statement only if it is given in accordance with and complies with the requirements prescribed by or under this Division.
30A Reading out victim impact statements in court
(1) If a victim impact statement has been duly received by a court, a victim to whom it relates, or a person having parental responsibility for the victim, or a member of the immediate family, or other representative, of the victim, is entitled to read out the whole or any part of the statement to the court.(2) The statement may be read out at such time as the court determines after it has convicted, but before it sentences, the offender.(3) If the proceedings for the offence concerned are proceedings in which the victim to whom the victim impact statement relates is entitled to give evidence by means of closed-circuit television arrangements, the victim is also entitled to read out the statement in accordance with those closed-circuit television arrangements.(4) For the purposes of this section, closed-circuit television arrangements means the arrangements for giving evidence provided for by section 294B or Division 4 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986.
Division 3 Taking further offences into account
In this Division:further offence means an offence referred to in a list of additional charges.
impose a penalty includes:
(a) impose a sentence of imprisonment or a fine, or(b) make an intensive correction order, home detention order or community service order, or(c) make an order that provides for an offender to enter into a good behaviour bond, or(c1) make a non-association order or place restriction order, or(d) make an order under section 10, 11 or 12.list of additional charges means a document filed in a court by the prosecutor, as referred to in section 32 (1).
principal offence means an offence the subject of proceedings referred to in section 32 (1).
32 Prosecutor may file list of additional charges
(1) In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.(2) A list of additional charges may be filed at any time:(a) after the court finds the offender guilty of the principal offence, and(b) before the court deals with the offender for the principal offence.(3) A copy of the list of additional charges, as filed in the court, is to be given to the offender.(4) A list of additional charges:(a) (Repealed)(b) must be signed by the offender, and(c) must be signed by or on behalf of the Director of Public Prosecutions or by a person, or a person belonging to a class of persons, prescribed by the regulations.(5) A list of additional charges is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised.(6) A failure to comply with the requirements of this section does not invalidate any sentence imposed by the court for the principal offence.
33 Outstanding charges may be taken into account
(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.(2) The court may take a further offence into account in dealing with the offender for the principal offence:(a) if the offender:(i) admits guilt to the further offence, and(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and(b) if, in all of the circumstances, the court considers it appropriate to do so.(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.(4) A court may not take a further offence into account:(a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or(b) if the offence is an indictable offence that is punishable with imprisonment for life.(5) For the purposes of subsection (4) (a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender.(6) Despite subsection (4) (a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account.
34 Ancillary orders relating to offences taken into account
(1) If a court takes a further offence into account under this Division, the court may make such ancillary orders as it could have made had it convicted the offender of the offence when it took the offence into account, but may not impose a separate penalty for the offence.(2) An offender with respect to whom an ancillary order is made has the same rights of appeal as he or she would have had if the order had been made on the conviction of the offender for the further offence.(3) An ancillary order for an offence taken into account lapses, by operation of this subsection, if the offender’s conviction for the principal offence is quashed or set aside.(4) In this section, ancillary order means an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege.
35 Consequences of taking offences into account
(1) If a further offence is taken into account under this Division:(a) the court is to certify, on the list of additional charges, that the further offence has been taken into account, and(b) no proceedings may be taken or continued in respect of the further offence unless the conviction for the principal offence is quashed or set aside.(2) This section does not prevent a court that has taken a further offence into account when dealing with an offender for a principal offence from taking the further offence into account if it subsequently imposes a penalty when sentencing or re-sentencing the offender for the principal offence.(3) An admission of guilt made for the purposes of this Division is not admissible in evidence in any proceedings relating to:(a) the further offence in respect of which the admission was made, or(b) any other offence specified in the list of additional charges.(4) An offence taken into account under this Division is not, merely because of its being taken into account, to be regarded for any purpose as an offence of which an offender has been convicted.(5) In or in relation to any criminal proceedings, reference may lawfully be made to, or evidence may lawfully be given of, the fact that a further offence has been taken into account under this Division in imposing a penalty for a principal offence of which an offender has been found guilty if, in or in relation to those proceedings:(a) reference may lawfully be made to, or evidence may lawfully be given of, the fact that the offender was found guilty or convicted of the principal offence, and(b) had the offender been found guilty or convicted of the further offence so taken into account, reference could lawfully have been made to, or evidence could lawfully have been given of, the fact that the offender had been found guilty or convicted of that further offence.(6) The fact that a further offence has been taken into account under this Division may be proved in the same manner as the conviction for the principal offence.
35A Consultation with victim and police in relation to charge negotiations
(1) In this section:charge negotiations means negotiations between the prosecution and an offender with respect to a plea of guilty in relation to an offence other than the offence or offences with which the offender has been charged or committed for trial.
prosecution guidelines means prosecution guidelines in relation to charge negotiations issued by the Director of Public Prosecutions.
requisite consultation means consultation with the victim and the police officer in charge of investigating an offence that complies with the applicable prosecution guidelines.
victim has the same meaning as it has in section 26.
(2) A court must not take into account offences specified in a list of additional charges under section 32 in relation to an offence, or any statement of agreed facts, that was the subject of charge negotiations unless the prosecutor has filed a certificate with the court verifying that:(a) the requisite consultation has taken place or, if consultation has not taken place, the reasons why it has not occurred, and(b) any statement of agreed facts arising from the negotiations tendered to the court constitutes a fair and accurate account of the objective criminality of the offender having regard to the relevant and provable facts or has otherwise been settled in accordance with the applicable prosecution guidelines.(3) The certificate must be signed by or on behalf of the Director of Public Prosecutions or by a person, or a person belonging to a class of persons, prescribed by the regulations.(4) A certificate is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised.(5) The court may require the prosecution to explain the reason for a failure to file a certificate when it is required by this section to do so.
Division 4 Sentencing guidelines
In this Division:Court means the Court of Criminal Appeal.
guideline judgment means a judgment that is expressed to contain guidelines to be taken into account by courts sentencing offenders, being:
(a) guidelines that apply generally, or(b) guidelines that apply to particular courts or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of offenders (but not to particular offenders).guideline proceedings means:
(a) proceedings under section 37 on an application for a guideline judgment referred to in that section, and(b) that part of proceedings that relates to the giving of a guideline judgment under section 37A.
37 Guideline judgments on application of Attorney General
(1) The Court may give a guideline judgment on the application of the Attorney General.(2) An application for a guideline judgment may include submissions with respect to the framing of the proposed guidelines.(3) An application is not to be made in any proceedings before the Court with respect to a particular offender.(4) The powers and jurisdiction of the Court to give a guideline judgment in proceedings under this section in relation to an indictable or summary offence are the same as the powers and jurisdiction that the Court has, under section 37A, to give a guideline judgment in a pending proceeding in relation to an indictable offence.(5) A guideline judgment under this section may be given separately or may be included in any judgment of the Court that it considers appropriate.(6) (Repealed)
37A Guideline judgments on own motion
(1) The Court may give a guideline judgment on its own motion in any proceedings considered appropriate by the Court, and whether or not it is necessary for the purpose of determining the proceedings.(2) The Court is to give the Senior Public Defender, Director of Public Prosecutions and Attorney General an opportunity to appear as referred to in sections 38, 39 and 39A before giving a guideline judgment.
37B Review, variation and revocation of guideline judgments
A guideline judgment given in proceedings under section 37 or 37A may be reviewed, varied or revoked in a subsequent guideline judgment of the Court, whether or not given under the same section.
38 Senior Public Defender may intervene
(1) The Senior Public Defender, or a nominee of the Senior Public Defender who is an Australian legal practitioner, may appear in guideline proceedings.(2) Without limiting subsection (1), the Senior Public Defender or his or her nominee may do any one or more of the following:(a) oppose or support the giving of the guideline judgment by the Court,(b) make submissions with respect to the framing of the guidelines,(c) inform the Court of any relevant pending appeal with respect to sentence,(d) assist the Court with respect to any relevant matter.(3) Nothing in the Public Defenders Act 1995 or any other Act or law prevents, or in any way limits, the exercise of any function conferred on the Senior Public Defender, or on any nominee of the Senior Public Defender who is a Public Defender, under this section.(4) Without limiting subsection (3), in exercising any function conferred on the Senior Public Defender under this section, the Senior Public Defender is not, despite section 4 (3) of the Public Defenders Act 1995, responsible to the Attorney General.(5) The Legal Aid Commission may make recommendations to the Senior Public Defender as to the exercise of any function conferred or imposed on the Senior Public Defender, or on any nominee of the Senior Public Defender, under this section.
39 Director of Public Prosecutions may intervene
(1) The Director of Public Prosecutions may appear in person or be represented by an Australian legal practitioner in guideline proceedings.(2) Without limiting subsection (1), the Director of Public Prosecutions or his or her representative may do any one or more of the following:(a) oppose or support the giving of the guideline judgment by the Court,(b) make submissions with respect to the framing of the guidelines,(c) inform the Court of any relevant pending appeal with respect to sentence,(d) assist the Court with respect to any relevant matter.(3) Nothing in the Director of Public Prosecutions Act 1986, the Crown Prosecutors Act 1986 or any other Act or law prevents, or in any way limits, the exercise of any function conferred on the Director of Public Prosecutions, or on any representative of the Director who is a Crown Prosecutor, under this section.(4) Without limiting subsection (3), in exercising any function conferred on the Director of Public Prosecutions under this section, the Director is not, despite section 4 (3) of the Director of Public Prosecutions Act 1986, responsible to the Attorney General.
39A Attorney General may intervene
(1) The Attorney General, or a nominee of the Attorney General who is an Australian legal practitioner, may appear in that part of proceedings that relates to the giving of a guideline judgment under section 37A.(2) Without limiting subsection (1), the Attorney General or his or her nominee may do any one or more of the following:(a) oppose or support the giving of the guideline judgment by the Court,(b) make submissions with respect to the framing of the guidelines,(c) inform the Court of any relevant pending appeal with respect to sentence,(d) assist the Court with respect to any relevant matter.(3) Nothing in any other Act or law prevents, or in any way limits, the exercise of any function conferred on the Attorney General, or on any nominee of the Attorney General, under this section.
40 Discretion of Court preserved
Nothing in this Division:(a) limits any power or jurisdiction of the Court to give a guideline judgment that the Court has apart from this Division, or(b) requires the Court to give any guideline judgment under this Division if it considers it inappropriate to do so.
Rules of court may be made under the Supreme Court Act 1970 with respect to applications, and proceedings to determine applications, under this Division.
42 Use of evidence in giving guideline judgments
(1) Nothing in section 12 of the Criminal Appeal Act 1912 limits the evidence or other matters that the Court may take into consideration in giving a guideline judgment and the Court may inform itself as it sees fit.(2) The Court must not increase a sentence in any appeal by reason of, or in consideration of, any evidence that is used by the Court in giving a guideline judgment in the appeal but was not given at the trial.
42A Relationship of guidelines and other sentencing matters
A guideline that is expressed to be contained in a guideline judgment:(a) is in addition to any other matter that is required to be taken into account under Division 1 of Part 3, and(b) does not limit or derogate from any such requirement.
Division 5 Correction and adjustment of sentences
43 Court may reopen proceedings to correct sentencing errors
(1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has:(a) imposed a penalty that is contrary to law, or(b) failed to impose a penalty that is required to be imposed by law,and so applies whether or not a person has been convicted of an offence in those proceedings.(2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard:(a) may impose a penalty that is in accordance with the law, and(b) if necessary, may amend any relevant conviction or order.(3) For the purposes of this section, the court:(a) may call on the person to whom the proceedings relate to appear before it and, if the person does not appear, may issue a warrant for the person’s arrest, or(b) if of the opinion that the person will not appear if called on to do so, may, without calling on the person to appear before it, issue a warrant for the person’s arrest.(4) Subject to subsection (5), nothing in this section affects any right of appeal.(5) For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed.(6) In this section:impose a penalty includes:
(a) impose a sentence of imprisonment or a fine, or(b) make an intensive correction order, home detention order or community service order, or(c) make an order that provides for an offender to enter into a good behaviour bond, or(c1) make a non-association order or place restriction order, or(d) make an order under section 10, 11 or 12, or(e) make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege.